Appeal No. 2006-2627 Page 37
Application No. 09/947,833
Table 2, column 10 of Yim38, alleging that compositions comprising calcium sulfate were
“non-flowable within 15 minutes.” Brief, page 639. Appellants’ assertions are not
consistent with the evidence of record. First, O’Leary’s compositions are not limited to a
liquid state. As discussed above, O’Leary defines flowable as including compositions
that are “shape-sustaining”, “e.g., those which behave like putty.” O’Leary, column 3,
lines 30-36. Further contrary to appellants’ suggestion, Table 2 of Yim is consistent with
O’Leary’s “shape-sustaining but readily deformable”40 composition, for Table 2 of Yim
describes compositions that are “shapable”, “remoldable” and “malleable” after 15
minutes. Yim, column 10, Table 2, Key #5. Accordingly, I am not persuaded by
appellants’ argument.
Furthermore, nothing in appellants’ claim 1 requires that the claimed composition
exhibit a particular physical state (e.g., runny, moldable or hard), nor does appellants’
claim 1 require a particular “set-up” time (e.g., slow, fast or within 15 minutes). In my
opinion, appellants’ arguments relating to the physical state or set-up time of the
composition are not commensurate in scope with their claimed invention.
For these same reasons, I am not persuaded by appellants’ assertion (Brief,
page 7) that they “have discovered that the claimed plasticizing substance [e.g.,
hydroxypropyl methylcellulose] can forestall the calcium sulfate hemihydrate hardening
38 I note that the data presented in Table 2 of Yim is directed to the ability of calcium sulfate to improve
the handling characteristics of a composition such as that taught by U.S. Patent No. 5, 171,579 (e.g., a
composition comprising blood). While this is one embodiment of Yim’s disclosure, as discussed above,
the bone graft composition disclosed by Yim at column 8, lines 16-28 does not contain blood.
39 At page 6 of the Brief appellants assert “Yim itself describes how quickly a calcium sulfate hemihydrate
solution loses flowability in Table 2 in column 10. Note that each tested composition appearing in Table 2
was non-flowable within 15 minutes.”
40 O’Leary, column 3, lines 30-36.
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